Lawyer says lewd behavior charge is too much for man caught without pants

August 2, 2016 by Neal Simpson, The Patriot Ledger via The Enterprise.

Excerpt: “The law requires that the person expose himself to a person – that there be a person present to see it,” Noonan told the Ledger. “What we have here is an inanimate object – a camera – and no human being there to see it.” “Judge Bradley agreed…” Read Article on the Web

CASE UPDATE / RESULTS

June 7, 2016Commonwealth v. Allen CostaDocket No.: 1658 CR 0507

OPEN & GROSS: DISMISSED upon MOTION
OPEN & GROSS: DISMISSED upon MOTION

A woman approached Hanover Police Officers at Forge Pond Park and reported two incidents where she observed a man walking on the trail and the man was naked from the waist down. The woman provided police with a physical description of the male suspect. The police placed a trail camera in the area where the witness reported seeing the male naked from the waist down. According to the police report, the camera showed a male party (matching the witness’s description) walking on the trail wearing no pants on two separate occasions on 03/28/16 and 03/30/16. Subsequently, police conducted a stakeout where they hid in the woods in the area where the male party was seen walking naked from the waist down. According to the police report, one officer observed a male party (later identified as the defendant) walking on the trail wearing no pants or underwear with his penis and testicles completely exposed and the male suspect was swinging his penis side to side with his right hand. The officers emerged from the woods and arrested the Defendant at gun point. At the police station, officers showed the defendant two pictures from the trail camera and the defendant acknowledged that he was the person depicted in the photos. The police charged the defendant with 3 counts of Open and Gross Lewdness. Two of the charges stemmed from the two separate occasions where the trail camera showed the defendant naked from the waist down on 03/28/16 and 03/30/16.

Result: Attorney Patrick J. Noonan filed a Motion to Dismiss the two counts that were based on the camera footage of 03/28/16 and 03/30/16. Attorney Noonan argued that the offense of Open and Gross Lewdness requires that the defendant “expose his genitals to one or more persons” and the law requires that the illegal conduct occur “in the presence of another person.” Attorney Noonan argued that the two charges should be dismissed because there were no human being(s) present to observe the illegal conduct. Attorney Noonan argued that the only witness to the alleged offenses on 03/28/16 and 03/30/16 was the trail camera (an inanimate object) and not a human being. The Judge agreed with Attorney Noonan’s argument and dismissed the two counts that were based on the camera footage.

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